The moral duty to do no harm

Legal institutions – both educational and professional – have duties to assist those in their care deal with distressing content which can affect health and wellbeing.

This was the central theme of the recent National Wellness for Law Forum, hosted at Bond University in the Gold Coast.

The forum, an annual gathering of the legal academics, practitioners, mental health advocates and human resources personnel that make up the National Wellness Network for Law, showcased a spectrum of perspectives on how law firms and universities can protect individuals against vicarious trauma.

And while there is a sense that the legal educational and professional spheres are not yet implementing proper protocols for vicarious trauma yet, “it’s a new and emerging area of psychology that traditionally has been attached to first responders, and it’s only just starting to be understood in law,” says Monash University lecturer Lloyd England.

Magistrate David Heilpern was among the first to flag the issue of vicarious trauma in the judiciary, noting in his keynote speech at the 2017 Tristan Jepson Memorial Foundation annual lecture that judges have to deal with gory details of criminal trials, and often do so in isolation and without opportunities to debrief.

Law schools, Mr England notes, have been even slower than the courts to pick up on the issue.

“If it’s not mandated or structured [in clinical practices for students], we risk the student experience being dependent on the subjective awareness of the individual supervisor or practitioner,” he argues.

“Some of these battle-hardened practitioners have a different view of this space [compared to what] a young, vulnerable student might need.”

“We need to protect students during their education,” he warns.

University of Melbourne lecturer Dr Chi Baik agrees, saying while there are “pockets of excellence” in legal education, committed academics shouldn’t bear the brunt of responsibility in the face of traditional teaching and learning structures in institutions.

Making significant environmental changes to navigating traumatic material would, she submits, have a wider impact.

“It’s about removing unnecessary stressors that don’t lead to better student learning,” she says.

“We’re not saying change the learning objectives, we’re arguing for ways to support students so they’re learning at the standard required without suffering psychological distress.”

Dr Colin James, senior lecturer at ANU College of Law, says legal practices aren’t faring much better, and draws a comparison between the environments of lawyers and mental health workers.

“Lawyers show more symptoms [of psychological distress and vicarious trauma] because they have larger workloads driven by cost targets, unlike mental health workers who are not, and also because those workers get training that is trauma-informed, and lawyers do not,” he explains.

“There would be very few legal practices in Australia that provide trauma-informed supervision, as there is a presumption lawyers will suck it up.”

“That thick-skinned attitude is really destructive.”

While he notes that such in-house training is an addition cost for firms to consider, on top of new fiscal considerations such as tech applications, outsourcing and offshoring, there remains a denial of and refusal by some to accept research about the prevalence of mental health issues that should give rise to discussion about problems like vicarious trauma.

“[Workplaces should be] making sure supervision of staff is trauma-informed, and that lawyers are being looked after, which includes making sure they’re capable of dealing with the negativity of violent images and materials they sometimes have to engage with quite deeply in the nature of their practice,” he says.

Correspondingly, there is also an onus of individual responsibility, he adds.

“At some level, a lawyer chooses a particular workplace. They should have self-awareness, practice self-care, and feel empowered to ask about strategies that exist for [vicarious trauma],” he says.

Mr England noted that a similar approach is needed in the context of legal education.

“Debrief often. Don’t keep it in, don’t put a lid on it,” he advises.

“Supervisors and educators should be regularly asking how one is going, and ensuring a student knows a safe place exists.”

To address this, the Monash Education Academy at Monash University has given a grant to Mr England to develop Vicarious Trauma Best Practice Protocols for Staff and Students in Clinical Legal Education.

“This is Australia leading trauma-informed practice in clinical legal education,” he explains.

“It is hoped these world-first protocols will benefit lawyers, staff and students alike, plus assist in providing a more compassionate and trauma-aware service to end users of community legal centres.”

Students must also take charge themselves, he says, by acknowledging that, at times, discomfort may exist with work and study matters.

“It’s alright to sit with it and grow, but you must also reflect on how you’re going,” he argues.

“Everyone brings their own baggage to work and study, and if you’re glass is already full, and you’re at capacity with your coping, one event at work can tip you over the edge.”

“Be self-aware, and acknowledge we all have our limits of coping.”

Ultimately, putting in place protocols for vicarious trauma will fulfil both the moral and legal duty espoused by these academics, because it will help lawyers and students get the most out of their work.

“[There must be] fundamental and far-reaching change in this area if [institutions] want to take wellbeing seriously,” Dr Baik concludes.

“It’s about getting to the core of an individual’s experience, not just dealing with the peripheral things that might enhance the experience.”

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